UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4151

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
RAMON A. PEREZ-MENDEZ,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-341)

Submitted:

November 2, 2005

Decided:

January 3, 2006

Before NEIMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Marc G. Hall, MCCALLY & HALL, Rockville, Maryland, for Appellant.

Thomas M. Dibiagio, United States Attorney, Christopher J. Romano,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Ramon A. Perez-Mendez appeals from his conviction and
sentence following his guilty plea to conspiracy to distribute and
to possess with intent to distribute heroin and cocaine.

On

appeal, he challenges the district courts denial of his motion to

dismiss the indictment for lack of venue and denial of his motion
to withdraw his guilty plea.

He also argues that the court erred

by enhancing his sentence based on its finding that he obstructed

justice

and

in

responsibility.

not

reducing

his

sentence

for

acceptance

of

For the reasons that follow, we affirm Perez-

Mendezs conviction, but vacate the sentence and remand to the

district court for resentencing.
Perez-Mendez first argues that venue was not proper in
Maryland

because

the

crime

did

not

occur

in

Maryland.

The

stipulated facts were that Perez-Mendez traveled with Roberto Luis

Rodriguez Cintron through Maryland while en route to Washington,
D.C., to meet a buyer from Maryland and deliver a quantity of
narcotics.

This meeting was scheduled through phone conversations

both to and from Maryland. The Maryland buyer had twice previously
purchased narcotics from Perez-Mendez and Cintron and resold those
drugs in Maryland.
Maryland.

These facts are sufficient to support venue in

See United States v. Ramirez-Amaya, 812 F.2d 813, 816

(2d Cir. 1987) (upholding venue based on flight over district);

United States v. Shearer, 794 F.2d 1545, 1551 (11th Cir. 1986)

- 2 -

(upholding venue based on travel through and flight over district);

United States v. Strickland, 493 F.2d 182, 186 (5th Cir. 1974)
(finding venue proper in state based on phone calls to that state
in furtherance of conspiracy).

We therefore affirm the denial of

Perez-Mendezs motion to dismiss the indictment for lack of venue.

Perez-Mendez next argues that the district court abused
its discretion in denying his motion to withdraw his guilty plea.
He contends that the Government impliedly promised him the
opportunity to provide assistance and possibly warrant a motion for
a downward departure at sentencing based on substantial assistance.
We note that, under the terms of the agreement, the Government was
not obligated under its plea agreement to file such a motion,
United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000), and there
is no indication that it refused to make the motion based on an
unconstitutional motive.
185-86 (1992).

Wade v. United States, 504 U.S. 181,

Rather, the Government declined to file the

motion--and indeed declined to seek assistance from Perez-Mendez-after

it

discovered

that

Perez-Mendez

had

provided

false

information to the court and to the presentence investigator.

See

United States v. David, 58 F.3d 113, 114 (4th Cir. 1995) (upholding
governments refusal to make 5K1.1 motion where defendant had
provided substantial assistance and then jumped bail prior to
sentencing).

- 3 -

Moreover, we find no abuse of discretion by the district

court in denying Perez-Mendezs motion to withdraw the plea.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996)
(providing standard); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991); see United States v. Puckett, 61 F.3d 1092, 1099
(4th Cir. 1995) (holding that the key factor is whether the plea
hearing was properly conducted). We have carefully scrutinized the
Fed. R. Crim. P. 11 colloquy and find no error by the district
court in determining that the plea was knowingly and voluntarily
entered.

See United States v. Lambey, 974 F.2d 1389, 1394 (4th

Cir. 1992) (holding that a properly conducted Rule 11 proceeding

raise[s]
binding).

strong

presumption

that

the

plea

is

final

and

Thus, we affirm the district courts denial of Perez-

Mendezs motion to withdraw his plea.

Next,

Perez-Mendez

challenges

the

district

courts

enhancement of his sentence based on obstruction of justice. Based

on the offense of conviction and the stipulated amount of drugs
that were reasonably foreseeable over the course of the conspiracy,
Perez-Mendezs base offense level was 32.

Two points were added

for obstruction of justice, resulting in an adjusted offense level

of 34, criminal history category II, and a sentencing range of 168
to 210 months.

The district court imposed a 189-month sentence.

In the presentence report, the probation officer reported

that Perez-Mendez gave false information to the probation officer.

- 4 -

The officer recommended that the court find that he obstructed

justice

and

also

responsibility.

deny

Because

any

reduction

Perez-Mendez

for

did

acceptance

not

object

to

of
the

enhancement at the sentencing hearing, the court was not required

to hold a hearing or to make specific findings before adopting the
recommendation in the presentence report.

See United States v.

Love, 134 F.3d 595, 606 (4th Cir. 1998).

Perez-Mendez also asserts that the enhancement is in
violation of United States v. Booker, 125 S. Ct. 738 (2005).
Because Perez-Mendez did not raise a Sixth Amendment objection to
the enhancement in the district court, our review is for plain
error.

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.

2005).
The enhancement increased Perez-Mendezs sentencing range
from 135 to 168 months at offense level 32 to 168 to 210 months at
offense level 34.
sentence

was

substantial

We therefore find that Perez-Mendezs 189-month

the

rights,

result

of

because

plain

it

error

resulted

in

that
a

affected

longer

term

his
of

imprisonment than the court could impose based solely on the facts
admitted by Perez-Mendez.

Id. at 548.

Because the district court

impose[d] a sentence greater than the maximum authorized by the

facts found by the jury alone, we conclude that the district court

- 5 -

committed plain error that warrants correction.1

at 546.

Hughes, 401 F.3d

Accordingly, we vacate Perez-Mendezs sentence and remand

for resentencing.
The
challenge

to

last
the

issue

raised

district

courts

acceptance of responsibility.
determination.
Cir.

1996)

on

appeal

denial

of

is
a

Perez-Mendezs
reduction

for

We find no clear error in this

See United States v. Miller, 77 F.3d 71, 74 (4th

(providing

standard).

The

record

supports

the

determination that Perez-Mendez provided a different name and date

of birth to the court and the presentence report investigator.
Additionally, he failed to disclose that he had previously been
deported.

Perez-Mendezs claim that these statements were due to

the language barrier is incredible, given that during the plea

hearing at which he made these statements, Perez-Mendez had the
assistance of an interpreter.
Having found that Perez-Mendez obstructed justice, the
court

appropriately

reduction.

denied

the

acceptance

of

responsibility

Conduct resulting in an enhancement under 3C1.1

(Obstructing or Impeding the Administration of Justice) ordinarily

indicates that the defendant has not accepted responsibility for

As we noted in Hughes, 401 F.3d at 545 n.4, [w]e of course

offer no criticism of the district judge, who followed the law and
procedure in effect at the time of [Perez-Mendezs] sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is plain if the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal).
- 6 -

his criminal conduct.

USSG 3E1.1, comment. (n.4); see United

States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995) (upholding

denial

of

acceptance

obstruction of justice).

of

responsibility

We find that

where

court

found

Perez-Mendez has failed to

show that his is an extraordinary case[] in which adjustments

under both 3C1.1 and 3E1.1 [] apply.
(n.4).

USSG 3E1.1, comment.

Accordingly, we affirm the district courts denial of the

acceptance of responsibility reduction.

In conclusion, we affirm Perez-Mendezs conviction, but
vacate his sentence and remand the case to the district court for
resentencing pursuant to Booker and Hughes.2

See Hughes, 401 F.3d

at 546 (citing Booker, 125 S. Ct. at 764-65, 767).

We dispense

with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

Although the Sentencing Guidelines are no longer mandatory,

Booker makes clear that a sentencing court must still consult
[the] Guidelines and take them into account when sentencing. 125
S. Ct. at 767.
On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.A.
3553(a), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C.A. 3553(c)(2). Id.
The sentence must be within the statutorily prescribed range and
. . . reasonable. Id. at 547.
- 7 -